On June 29, 2018, Judge Restani of the Court of International Trade (“CIT”), issued her opinion in Tabacos de Wilson, Inc. et al. , v. Mnuchin et al., the lawsuit that Charter Brokerage organized and funded seeking a reversal of Customs position in not allowing Accelerated Payment for claims filed under the Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”)

The Court ruled on the following:Counts I and II: Plaintiffs are not entitled to accelerated payment for drawback claims until a final regulation and drawback calculation formula is promulgated;Counts III and IV: these are moot as CBP already changed the Interim Guidance document;Count V: in favor of the Plaintiffs by finding that CBP’s failure to issue regulations within the Congressionally mandated 2 year time frame is “in violation of the law.”

Regarding the withholding of the regulations by CBP as a violation of law, the Court advised the parties to meet to discuss possible remedies and that Plaintiffs shall advise the Court by July 27, 2018 if the relief sought has not been obtained.

While not winning on every count, Charter Brokerage views the Court’s action as a positive step forward in finding that the Plaintiff’s claim that CBP’s failure to issue regulations was in violation of Congress’ clear intent. Additionally, we look forward to meeting with CBP as quickly as possible to craft a remedy that reduces the harm to the trade community and allows for the orderly promulgation of these important regulations.

UPDATE: June 1, 2018

Effective June 1, 2018, all countries of origin on steel products will have an additional 25% duty rate imposed except Argentina, Australia, Brazil and South Korea.

Effective June 1, 2018, all countries of origin on aluminum products will have an additional 10% duty rate except Argentina and Australia.

Canada, Mexico and the European Union have all announced retaliatory trade measures against the U.S.

A U.S. – China trade war was sparked on March 23, 2018, when President Trump imposed worldwide tariffs on steel and aluminum imports in the interest of “safeguarding national security” and protecting U.S. steel jobs. The Section 232 steel and aluminum tariff increased to 25% for steel and 10% for aluminum. Though the goal is to put American jobs first, the new tariffs may have mixed results for U.S. petroleum and other industries.

Trump’s steel and aluminum tariffs are effective worldwide, with some temporary exceptions to the new rule. For the period of March 23, 2018 through May 30, 2018, the administration allowed an exemption of the tariffs for the following countries of origin: Canada, Mexico, Australia, Argentina, South Korea, Brazil and member countries of the European Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom).

Energy groups are pressuring the Trump administration to consider the economic risks of the new tariffs on Chinese goods. After the U.S. imposed Section 232 duties on steel and aluminum, the Chinese retaliated with import duties on 128 U.S. exported goods imported to China, including agricultural products such as fruit, nuts, and pork. Trump announced Section 301 tariffs on additional Chinese products, which could result in $100 billion in tariffs. China also submitted a formal complaint to the World Trade Organization (WTO) about the U.S. tariff hikes.

In addition to the steel and aluminum tariffs set by Section 232, the Trump administration released the 2018 Special 301 Report on Intellectual Property Rights, adding China, among 12 other countries, to the Priority Watch List. In Section 301, the Trump administration investigates whether China’s policies and practices related to intellectual property and transfer of technologies are restrictive to U.S. commerce. China disputes the investigation.

The Trump steel tariffs may initially prove beneficial to the U.S. steel industry, but ultimately could end up hurting the petroleum industry. After the initial tariffs took place, the domestic steel industry saw a 5% increase in prices. “A temporary drop in steel imports triggered by Section 232 has supported prices,” UBS analyst Andreas Bokkenheuser wrote in a note to clients. But as projects for pipelines and other energy projects increase, so has the demand for steel. American steel companies are limited in their ability to meet demand for larger pipelines. Domestic steel providers may become backed up in production, leading to delays or cancellations of pipeline projects. The 25% fee on imported steel could add roughly $76 million to a typical pipeline project, according to a 2017 Association of Oil Pipe Lines report. The petroleum industry also relies on steel for infrastructure projects, drilling equipment, refineries, and natural gas terminals.

President Trump’s recent proclamation also stipulated that drawback will not be available with respect to Section 232 duties imposed on articles of steel and aluminum. While no drawback can be claimed on Section 232 and Section 301 tariffs at this time, Charter Brokerage’s substantial experience and expertise, especially in the steel and petroleum industries, can help you navigate through the ever-growing sea of increasingly complex rules and regulations that govern the international trade and customs processes. Our team of customs and international trade attorneys, licensed clearance brokers and expert staff assist our clients in understanding their customs and export obligations and in adopting and implementing policies and programs that ensure compliance with the applicable laws and regulations.